Bluthenthal & Bickert v. Trager & Co. , 131 Ala. 639 ( 1901 )

DOWDELL, J.

-The bill in this case was filed by appellees under section 2158 of the Code of 1896, which relates to general assignments. It is contended by counsel for appellants that this statute was declared unconstitutional in the case of Builders’ & Painters’ Supply Co. v. Lucas & Co., 119 Ala. 202, and therefore void. In that case it was said by this court, having then under consideration the act of February 16, 1897, (Acts, 1896-97, pp. 1089-90), and which was there declared void as being offensive to section 2 of Art. IY of the constitution: “Since the rendition of tire judgment, and the filing of the bill, the Code of 1896 has become operative, into which the enactment is substantially introduced — ■ the two first sections forming part of the civil code '(§ 2158), and the third section part of the criminal code (§ 4759). If this enactment had formed parts, of the Code at the time of its adoption, all infirmities of legislative procedure in its original enactment would have been cured. — Bates v. State, 63 Ala. 30. But it was not then parts of the Code, and was not re-enacted as parts of it. It was incorporated or introduced by the commissioner, in obedience to the legislative mandate that all laws of enactment at the session of the adoption of the Code, .should be introduced therein. Whatever of validity such laws may have is derived from their original enactment, and not from their introduction, or the manner of their introduction into the Code.” It does not follow from this, that section 2158 as it now stands is invalid in whole, but on the contrary, whatever part of that section as now contained in the published volume of the Code, that was in the Code at the time of the act of adoption, is preserved, and is still operative, by force of the act of adoption, and only such parts, or so much of it, as was introduced by the commissioner, is invalid and inoperative. The manuscript volume of the Code, on file in the office of the Secretary of State, which was adopted by the act of February 16, 1897, contains the act of February 21, 1893, (Acts 1892-93, p. 1046), and is copied into the manuscript volume in the precise language of the original enactment. And it may be here added, that the act of February 21, 1893, as adopted' into the Code, is embraced in its entirety in section 2158 of the published volume of the Code. Our conclusion is, that so much of section 2158 as embraces the act of February 21, 1893, which was adopted into the Code by the act of adoption, is valid and operative, and only so much as was introduced into that section by the commissioner is invalid.

After a careful consideration of the evidence we 'are of the opinion that the chancellor’s conclusion on the facts was right, and we can see no reason to disturb his decree.

The decree is affirmed.